Hard Bargain: Even a super-hacktivist can't change how sentencing works

Earlier this month, a federal judge sentenced "hacktivist" Jeremy Hammond to "the maximum available" sentence: ten years in prison for hacking 60,000 credit card numbers and 860,000 customer records from intelligence contractor, Stratfor. Speaking to TechCrunch, Hammond described the sentence as a “vengeful, spiteful act”. He was shocked -- shocked! -- that the courts would be so aggressive in their punishment.

There were just a few problems with that narrative. In particular, the idea that ten years was the maximum being "faced" by Hammond seemed to jar with earlier reports that he was "facing" life behind bars. What changed?

A plea bargain, that's what.

For all of Hammond's stunned outrage at his decade in the slammer (which will likely be closer to eight and change when all is said and done), the hacker knew full well what he "faced" that day in court. In fact, his own legal team had agreed to it.

Plea bargains are one of those things that everyone thinks they understand, until someone is sentenced based on one and we all cry foul. As a defense attorney, it pains me to hear people crying foul. Once and for all, then, to avoid future confusion and to save future reporters from embarrassing themselves with unnecessary or misplaced outrage, here's a plea bargain primer...

In Reagan-era (versus Orwell predicted) 1984, the criminal sentencing of a person guilty of a federal offense became a fairly pedestrian matter of math by law. A balance sheet of plusses (good) and minuses (bad) that gave tiny range of punishments for judges to consider. Twenty years later it was finally realized that requiring judges to give mandatory sentences, regardless of circumstances, was horribly unconstitutional. Oops!

By this point -- the early 2000s -- prisons were filling up with people for long, long sentences as Congresspersons facing two-year election cycles kept upping the penalties in the name of law and order me a corner office in the Rayburn House Office Building. Appointed-for-life Federal Judges had been basically stripped of discretion except in extraordinarily limited situations. Finally the Supreme Court ruled that "guidelines" were precisely that: guidelines, and that judges could go back to sentencing as they saw fit. Defense attorneys like me applauded.

However, like muscle memory, judges continued to lean heavily (and by heavily I mean virtually all the time) on the old “guidelines.” Sentences barely moved -- or in some cases continued to get harsher. Federal prosecutors realized that as far as penalty guidelines – the sum remains the same. They remained emboldened.

2013. Enter Jeremy Hammond (aka “Anarchaos,” “sup_g,” “burn,” “yohoho,” “POW,” “tylerknowsthis,” “crediblethreat,” “ghost,” and “anarchackerif”) indicted on charges related to a number of high profile hack-attacks (or hactivistic campaigns if you’re a supporter). As Hammond's lawyer did what we do in these situations: breaking out the abacus to figure the “guideline” exposure. The next question: what’s the best way out? Trial or plea bargain?

To many Hammond is a hero. A Robin Hood who made no personal, financial gain despite the easy ability to do so. They see him as a person using his skills to bring down the “bad guys” and expose the “truth.” Indeed, in this case, the prosecutors conceded that despite between one to three million dollars in alleged loss that he didn’t take a dollar for himself.

As in any plea negotiation, parties go back and forth over defenses and mitigation. Here they likely disagreed over issues of a set-up, and the good of community and the net impact on society. In the end, and like in all cases where a deal gets struck, a person accused (even one with the loftiest of motives) usually has to swallow a whole lot of “that’s not fair” to avoid putting his or her fate in the hands of 12 people who (as now irrelevant righty Dennis Miller once said) aren’t clever enough to get out of jury duty.

According to the documents filed in this case, the prosecutors likely felt they could jack Hammond’s exposure way up the beanstalk on the sentencing scale based on the alleged loss to the thousands of victims and Hammond’s prior convictions along with the sophistication of his conduct. At the same time, few traditional mitigators were available. Both sides knew this when they entered into the agreement that initially placed Hammond at an enhanced level 30 (out of a possible high of 43) on the sentencing scale.

This meant that Hammond was looking at 151 to 188 months in Federal custody. And so the parties haggled a little more and landed on a stipulation of 120 months. That was their agreement going into sentencing.

That agreement is why when Hammond's pleas for an even lower sentence were rejected by the judge. His mitigating factors, as well as his admission of past offenses, had already been considered, and incorporated into the bargained sentence. The ten year deal stood.

Left open, of course, is the question of whether the underlying sentencing scale is too harsh for "hacktivism" cases like this. But Congress makes those numbers and unless someone can hack the United States Code, it doesn’t matter if you’re Robin Hood or Robin Leach (are they opposites?), the deal is, well, the deal.

Yes, it'd be amazing if a judge pulled an Al Pacino, condemned the entire system (YOU’RE ALL OUT OF ORDER!) and invited Hammond to brunch, but absent that fantasy…. you take the deal or go to trial. Hammond took the deal.